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TMI Blog2024 (11) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 26(2) of the Act forthwith. Consequently, no case for grant of relief(s) as sought under Section 33 of the Act arises. - MS. RAVNEET KAUR CHAIRPERSON, MR. ANIL AGRAWAL MEMBER, MS. SWETA KAKKAD MEMBER AND MR. DEEPAK ANURAG MEMBER Order under Section 26(2) of the Competition Act, 2002 1. The present Information has been filed by Metallurgical Products India Private Limited ( Informant / MPIL ), alleging contravention of the provisions of Section 4 of the Competition Act, 2002 ( Act ) by Government of India through The Secretary, Department of Atomic Energy ( OP-1 / DAE ) and IREL (India) Ltd. ( OP-2 / IREL ). 2. As per the Information, the Informant is a private limited company, engaged in the business of production/processing/conversion of Columbite and Tantalite ores to produce and market Niobium and Tantalum products, from its manufacturing facility located in MIDC- Taloja, Maharashtra. 3. OP-1 is Union of India, through The Secretary, Department of Atomic Energy. OP-2 is a Government of India undertaking which functions under the administrative control of DAE and engaged in mining and chemical processing of mineral sands containing Uranium, Thorium and rare earth min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is Consent to Operate the Informant s facility for processing Columbite and Tantalite ores. The concerned certificate was renewed continually till 30.04.2023. The Informant has further stated that DAE granted the necessary approval for the concerned disposal plan dated 04.04.2003 by entrusting the responsibility of its execution to OP-2. 10. It has been stated that through the disposal plan, IREL will periodically collect and dispose the Uranium bearing Leach Residue produced in the Informant s plant. To give effect to the concerned plan, IREL entered into agreements ( off-take agreement ) (required to be periodically renewed) with the Informant. As per the terms of the off-take agreement, if the Leach Residue yields REO 1% (Uranium Oxide), DAE and IREL would compensate the Informant for Uranium Oxide content. This arrangement regarding monetary compensation, which was decided by DAE/IREL exclusively, was the subject matter of 2- year contracts executed on largely identical terms between the Informant and IREL and subsisted for 15 years. 11. It has further been stated that the disposal plan does not have a sunset clause under the stated legal framework and consequently, the two-y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.04.2019, this was forwarded to DAE vide Informant s letter dated 08.04.2019 for necessary favourable action. However, no response was received from the DAE and IREL. It is stated that by keeping quiet on the Informant s presentation of making the Leach Residue fluoride-free, DAE and IREL have demonstrated their ulterior motives of not being willing to process the Informant s Leach Residue to the detriment of its survival. 16. As per the Information, the Informant was constrained to file a Writ Petition (WP) No. 2093 of 2021 in the Hon ble High Court of Bombay challenging the actions of DAE and IREL as arbitrary and in violation of the legal framework. It is stated that the Bombay High Court, in dismissing the Informant s petition by way of judgement dated 11.04.2023, has overlooked the statutory framework governing DAE s responsibilities under the AEA and AERB Guidelines. 17. It has also been stated that there were periods during 10.08.2004 to 27.03.2017 when a particular off-take agreement had expired and was awaiting renewal, but the same did not affect the obligation or assurance of DAE acting in this case through IREL to dispose of the Leach Residue as stated above. IREL co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in the processing of these specific ores and thereby the license and disposal plan for Uranium-bearing Leach Residue was granted without any hindrance to the Informant. However, with the increase in the public sector units in the field of processing these ores, it appears that DAE is ensuring that private players like the Informant cannot operate in this space. 21. As per the Informant, the Commission has the jurisdiction to entertain the present Information as DAE and IREL enjoy a position of dominance in the relevant market and are abusing their dominant position to drive the Informant out of the market to benefit certain public sector entities processing Columbite and Tantalite. It also has been stated that both DAE and IREL fall under the definition of enterprise as stated under Section 2(h) of the Act. 22. Based on the above-mentioned facts, the Informant has proposed the relevant product market as the market for disposal of Uranium bearing Leach Residue generated during the processing of Columbite and Tantalite ores . With regard to the geographical market, it has been stated that the import and processing conditions of disposal of the Uranium- bearing Leach Residue are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. (iii) Imposing the highest penalty on DAE and IREL, and their officers for having acted arbitrarily against the provision of the law, government policies, national interest, and in blatant contravention of the Act. (iv) Passing an order directing DAE and IREL to cease and desist from indulging in anti-competitive conduct listed above. 25. The Informant has also sought interim relief under Section 33 of the Act, on the following grounds: (i) the facts provided in the Information makes for a clear prima facie case of contravention by both DAE and IREL, (ii) the conduct of the DAE and IREL is the cause of Informant losing out on market access and its source of income, while also stating that if interim relief is not granted, then the industry as a whole will be impacted by the restricted supply of Niobium and Tantalum, (iii) balance of convenience lies squarely in favour of the Informant as no harm would be caused to the DAE and IREL if the interim relief sought below is granted. 26. Based on the above grounds, the Informant has sought interim relief by way of: (i) Directing DAE to withdraw directions contained in its letter dated 16.05.2019 requiring the Informant to stop proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for finalizing an off-take agreement in place of IREL indicating the fact that such off take agreements are entered into only on the direction of DAE. Thus, all the allegations are essentially against DAE. 31. The Informant has alleged violation of Section 4 of the Act against OPs which deals with abuse of dominant position by an enterprise in the relevant market. As per the scheme of Section 4, any anti-competitive conduct would be analyzed only if it is done by an enterprise , as defined under Section 2(h) of the Act. As alluded earlier, since alleged grievances relate to the activities of DAE, the Commission shall delve into the issue whether DAE is an enterprise in terms of Section 2(h) of the Act in the present matter. Section 2(h) of the Act is reproduced as under: enterprise means a person or a department of the Government, including units, divisions, subsidiaries, who or which is, or has been, engaged in any economic activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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